Clemens can’t get Congressional documents, judge rules

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(Bloomberg) — Former New York Yankees pitcher Roger Clemens lost a bid to get documents from U.S. lawmakers that he argued were needed to defend himself from perjury and obstruction charges.
U.S. District Judge Reggie Walton today in a ruling from the bench dismissed a subpoena issued by Clemens to a House of Representatives panel seeking materials that formed the basis of Congressional hearings on steroid use in Major League Baseball.
Walton said the information Clemens wanted from the House Committee on Oversight and Government Reform was exempt from disclosure because it fell within the sphere of legitimate legislative actions.
“I conclude there was a legitimate purpose for conducting hearings,” Walton said. “The use of steroids is a legitimate concern given major league athletes are people our youth look up to.”
Clemens requested that the committee turn over interview summaries, notes memoranda and all communications between committee staff and witnesses related to the February 2008 hearing on steroids. The subpoena covered 20 individuals, including former baseball players Jose Canseco, Andrew Pettitte and Chuck Knoblauch.
Walton, during a three-hour hearing, ruled that the Washington law firm, DLA Piper LLP, which was hired to investigate steroid use in Major League Baseball, must turn over to the judge about 20 documents. Walton said he will then decide whether the documents, including handwritten notes of witness interviews, are protected by attorney confidentiality rules.
The steroid report, published in 2007, was written by former U.S. Senator George Mitchell, who was a partner at Chicago-based DLA Piper at the time.
Clemens, 48, was indicted in August on one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury. Clemens, who also played for the Boston Red Sox, Toronto Blue Jays and Houston Astros over a 24-year Major League Baseball career, pleaded not guilty.
If convicted on all charges, Clemens faces a $1.5 million fine and as long as 30 years in prison. Jury selection is scheduled to begin July 6.
In a Dec. 8 order, Walton gave Clemens’s lawyers the authority to issue subpoenas to third parties, including Congress.
The case is U.S. v. Clemens, 10-cr-00223, U.S. District Court, District of Columbia (Washington).

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Federal judge Reggie Walton will hold a hearing today in Washington to determine whether Roger Clemens’ attorneys can have access to material from the law firm Major League Baseball hired to conduct the Mitchell Report and from the House Oversight Committee that conducted hearings on drug use in baseball.

The seven-time Cy Young Award winner is preparing his defense on a six-count indictment on charges of perjury, making false statements and obstruction of Congress in the aftermath of his claim that he never used performance-enhancement drugs.

At stake is a potential $1.5 million fine and maximum 30-year sentence, which is why two local defense attorneys believe Clemens is entitled to the materials requested by his attorneys, Rusty Hardin of Houston and Michael Attanasio of Cooley LLP in San Diego.

The Oversight Committee cited the Speech and Debate Clause last week in its motion to quash Hardin’s subpoena for the internal documents.

“I think one of the big issues is Mr. Clemens had subpoenaed documents from Congress that were prepared in their internal investigation into performance-enhancement drugs in baseball,” said former federal prosecutor Philip Hilder, who now serves as a defense attorney. “One of the key issues here is Congress leaked so much of that information gathered and leaked so much of it to the public.

“Do they even have a right to argue that the remaining documents are protected?”

In a report released in December 2007 and commissioned by MLB, former Sen. George Mitchell’s report implicated Clemens with using performance-enhancing drugs during his career.

Hardin has requested notes from witness interviews and memos that were produced during the Mitchell investigation by DLA Piper, the law firm that employed Mitchell and conducted the investigation for MLB.

Walton has issued a gag order in the case, so the prosecutors, Hardin and Attanasio have declined comment.

“As far as the DLA Piper motion, I think Roger is entitled to that, too,” said former prosecutor Chris Flood, a lawyer at Flood & Flood. “They are trying to expand the attorney work product privilege. But attorney work product privilege shouldn’t apply to DLA Piper paperwork because it was not created in anticipation of litigation.”

The DLA Piper notes helped produce a report that ultimately was used by the federal government.